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Sixth Committee Agenda item 81 Report of the International Law Commission Part 1

International Law Commission: Statement by Liesbeth Lijnzaad at 68th UN General Assembly

2 November 12

Statement by

Dr. Liesbeth Lijnzaad

Legal Adviser Ministry of Foreign Affairs

United Nations General Assembly 68th
Session

Sixth Committee

Agenda item 81

Report of the International Law Commission

PART 1

Chapters I – V and XII

Mr. Chairman,

1. Let me first of all congratulate the members of the ILC on
their election to the Commission last year, especially those members who are new
to the Commission. We wish them wisdom in their work on the codification and
progressive development of international law.

Chapter IV (Expulsion of Aliens)

Mr. Chairman,

2. I would like to turn to the topic of Expulsion of Aliens,
which has been on the agenda of the ILC since 2004. The Netherlands notes the
work of the Commission and the Special Rapporteur, Mr. Maurice Kamto, who
presented his eighth report on this topic. We would like to commend the drafting
committee for the draft articles and commentaries to those articles. The
Netherlands will submit comments and observations to the draft articles in
greater detail by the end of next year. Today I would like to take the
opportunity to make some general remarks.

3. The Commission has examined state practice in this field
very carefully, including international and national jurisprudence.
Notwithstanding the fact that the Commission in some instances concluded on the
absence of state practice, a choice seems to have been made to formulate draft
articles. The Special Rapporteur has even stated that ‘no other topic on the
Commission’s agenda for the past three quinquenniums has had a richer and more
solid foundation for codification’. Those draft articles must be considered
progressive development of law instead of codifying state practice. This becomes
apparent in draft articles 23 and 29 for example. We would seriously suggest the
reconsideration of this approach.

4. Looking at the second paragraph of draft article 11
concerning disguised expulsion, we consider that it should be more clearly
defined which acts can be attributed to a state and which acts cannot. Regard
could be paid to, for instance, the case law of the European Court of Human
Rights regarding the effective control doctrine. The fourth explanatory
paragraph to draft article 24 already alludes to this case law.

5. Furthermore, draft article 14, first paragraph mentions
the protection of human dignity as a separate human right. Since there is no
clear definition of the substance of this right retaining only the second
paragraph of this article, which calls for respect for human rights in general,
would afford adequate protection. In our perspective, the first paragraph would
then become redundant.

6. We would like to underscore the EU’s statement concerning
draft article 15, paragraph 1 that the inclusion of ‘sexual orientation’ as a
separate non-discrimination ground should be considered. Alternatively, the
explanatory text of this paragraph should emphasize that this aspect is covered
by the ground ‘sex’ as it is interpreted by the UN Human Rights Committee.

7. My delegation would like to reiterate its concern that the
ILC should not design a new human rights instrument, as these draft articles
should reflect accepted principles of international law and the detail and
nuance of these principles. We support the reformulation of these articles into
‘best practices’ or ‘policy guidelines’, and do not consider a set of draft
articles to be appropriate.

Chapter V (Protection of Persons)

Mr. Chairman,

8. Turning now to the Protection of Persons in disasters, I
would like to commend the Commission with the result of their work so far, and
the Special Rapporteur, Mr. Eduardo Valencia-Ospina, for his outstanding
contribution. The report usefully elaborates of the duty to cooperate as well as
on the conditions for the provision of assistance and its duration.

9. The Special Rapporteur put forward a new draft article A
concerning the Elaboration on the duty to cooperate. Even though there might be
merit in more precise language on the duty to cooperate in relation to non-State
actors as was suggested during the ILC debate, my delegation can agree with the
current formulation of the draft article.

10. Concerning draft article 13 which contains conditions for the
provision of assistance, I would like to note there is indeed a need to strike a
balance between assistance offered in response to acute needs of victims and the
responsibilities of the affected State. Such a balanced provision would allow
for the refusal of aid that is not in conformity with accepted principles of
humanitarian assistance, while avoiding arbitrary refusal of urgently needed aid
by the affected State.

11. Also, in our view this article could place more emphasis on
the need for the affected State to remove obstacles in national law that would
hamper a speedy provision of assistance in disasters which exceeds the national
capacity.

12. Finally, with regard to the next steps that
the Rapporteur proposes, my delegation would like to express some caution. In
our view, an expansion of these draft articles to the notion of disaster risk
reduction - although a very important topic in and of itself - may not be
suitable for the purpose of the present study. As stated before, we prefer a set
of articles that is narrow in scope, not addressing prevention or preparedness
but rather focusing on the acute needs and protection of persons in the event of
disasters. At the same time, we welcome the intention of the Rapporteur to
elaborate on the protection of humanitarian assistance personnel, as this is an
important concern during disasters. We look forward to his next report.

Chapter XII - Decisions of the International Law
Commission

Mr. Chairman,

13. To conclude, some words concerning the other decisions and
conclusions of the Commission as mentioned in Chapter XII of the rapport. My
delegation is pleased with the detailed insight the Commission provided
regarding its programme of work. While the transparency of the plan of work is
admirable, we note that discussion of the long term plan goes largely
unreported. Important as the selection of topics may be for the ILC, it is
certainly no less important for States. We hope that the ILC will be able to
share the gist of its discussions in future so that States will be able to
comment in the early stages of work.

14. We appreciate that the Commission has decided not to include
the topic of Protection of the atmosphere on its ‘to do’ list. We are
not at all convinced of the need to address this topic, it is very wide and more
suited for discussion amongst specialists, if at all. Thus, we very much agree
with the decision taken.

15. On the Protection of the environment in relation to armed
conflicts we understand that further research is planned. I refer to the
hesitations about this theme I have expressed in earlier sessions. We remain
unconvinced of the need to address this issue, and even if there would be reason
to revisit this issue, we doubt whether the International Law Commission - with
all due respect - would be best placed to consider this specialist matter.

16. At the same time, I would like to reiterate our view that
Fair and equitable treatment standard in international investment law
is a topic with great relevance for international legal practice, and thus
worthy of inclusion in the work programme of the Commission.